Hasnain Massodi, Judge

1. Petitioners minor daughter a class 11th student, was allegedly kidnapped by the respondent on 7th May 2010 forcibly taken outside state, wrongly confined and subjected to rape while in his custody. The matter was reported by the present petitioner to police station Anantnag whereupon case FIR No. 189 of 2010 P/S Anantnag u/s 363, 109 RPC was registered. The alleged victim was recovered from the custody of the respondent, her statement recorded and as per the certificate issued by the J&K Board of School Education (BOSE) she was found to have been 15 years and a few months old and thus a minor at the time of alleged occurrence. The investigation revealed that the victim had been taken to Gowhati, Assam by the respondent, wrongly confined, subjected to criminal intimidation and raped while in custody. P/S Anantnag on conclusion of investigation presented a charge sheet against the petitioner alleging commission of offences u/s 363, 376, 109, 344, 506 RPC in the court of Chief Judicial Magistrate, Anantnag. The respondent arrested on 25.5.2010 moved an application for grant of bail before learned CJM Anantnag. The application for bail was rejected on 23.06.2010. His second bid to get enlarged on bail also failed on 21.7.2010. The respondent thereafter laid one more application after the interval of two days i.e. on 23.7.2010 before learned Sessions Judge, Anantnag. The application was allowed on 22.9.2010 and respondent admitted to bail subject to conditions laid down there.

2. The order of learned Sessions Judge, Anantnag, dated 22.9.2010 was assailed in the Criminal Revision registered as Criminal Revision 28/2010 before this Court. The Revision was allowed and the order of Sessions Judge Anantnag dated 22.9.2010 set aside. The respondent was directed to surrender before the learned Sessions Judge, Anantnag and on his surrender to be sent to judicial custody. This court while disposing of the Criminal Revision on 27.5.2011 concluded as under:

Keeping in view the facts and circumstances of the case and the manner in which learned Sessions Judge has dealt with the matter, warning is sent to the Principal District and Sessions Judge, Anantnag, in this behalf.

3. The petitioner undaunted by order dated 27.05.2011 filed yet another application for his enlargement on bail on 6.7.2011. The application was rejected on the ground that the ossification test of the prosecutrix was yet to be received. Learned Sessions Judge opined that there was no occasion to allow the application unless the ossification test of the prosecutrix was received. The trial court indirectly linked the fate of the respondents bail application with the ossification test of the prosecutrix. Once the ossification test was received, the respondent again approached the trial court with an application for his admission to bail on 20.8.2011. Learned Sessions Judge, Anantnag noticing that the medical expert on the basis of the ossification test was of the opinion that the victim was 17/18 years of age on 09.8.2011 allowed the application and granted bail to the respondent on 30.8.2011 subject to the conditions laid down in the order.

4. The order of the learned Sessions Judge Anantnag dated 30.08.2011 is questioned in the present petition u/s 561A Cr. P. C. on the grounds set out in the petition.

5. I have gone through the petition as also record available on the file and have heard learned counsel for the respondent.

6. The Court while dealing with the application for grant of bail in a non-bailable offence is required to have due regard to the gravity and seriousness of the offence, the punishment alleged offence carries, the chance of the accused giving a slip to the law, influencing and intimidating the prosecution witnesses, obstructing the investigation, likelihood of the accused repeating the offence, and impeding the trial in the event he is extended the concession of bail and above all societal concerns. The Court is expected, nay, required to examine and consider whether the offence alleged against the accused because of its fallout on the values nursed and nourished by the society and because of its seriousness and gravity has potential to cause alarm in the society. It needs to be emphasized that the accused alleged to have committed a non-bailable offence cannot claim bail as a matter of right. This does not mean that such an accused cannot maintain an application for grant of bail. However, his request for grant of bail is to be dealt with at the touchstone of afore-stated settled principles. In the present case learned Sessions Judge on 21.7.2010 while rejecting the bail application observed as under:

taking into consideration the nature of the offence committed, the evidence collected and the age and antecedents of the victim and the corresponding antecedents of accused in custody, I am of the considered view that it is fit case to reject the bail application till on being charge sheeted the prosecution examines the prosecutrix. For the reasons aforesaid the bail application filed is rejected

7. Learned Trial Judge was thus of the opinion that the bail application would deserve consideration only after two stages in the trial were crossed: Firstly, the accused was formally charged of the offences prima facie found to have been committed by him; Secondly, that the alleged victim crossed the witness box.

8. The observation made by the trial judge as regards stages of the trial whereafter the respondents bid to get enlarged on bail would merit consideration, cannot be faulted. The trial court would have a definite idea about the offence(s) committed by the respondent on a prima facie view of the material contemplated by section 173 cr. P. C. only after the accused was formally charged and the trial pushed to take off stage. Similarly, the appearance of the alleged victim in the witness box and recording her statement would dispel all suspicion regarding possibility of the respondent influencing, intimidating or coercing her before her statement was record. Learned trial judge ignored the conclusions drawn by it and spelt out in its order dated 21.7.2010 as reproduced above and rushed to grant bail to the respondent on 22.9.2010 least realizing that neither the respondent was formally charged nor had the victim stood in the witness box. The order dated 22.9.2010 was set aside by this court vide order dated 27.5.2011 while allowing the Revision. This court while setting aside the order pointed out that learned Sessions Judge, had conveniently tried not to discuss the allegations leveled against the accused and granted him bail unmindful of the fact that he was involved in a heinous crime. This court proceeded to notice the mode and manner in which the bail was granted to the respondent and sent a warning to the Sessions Judge, Anantnag.

9. The learned Sessions Judge while disallowing the respondents bail application erroneously linked the grant of bail to the respondent to ossification test of the alleged victim and on 30.8.2011 having earlier paved way for grant of bail to the respondent by linking the bail with the ossification test of the alleged victim, allowed the bail application on the only ground that as per the ossification test the victim on the date the test was conducted was 17/18 years of age. The considerations that normally ought to have weighed with learned Sessions Judge while dealing with the application were very conveniently ignored and pushed to the back seat. Learned Sessions Judge did not discuss the gravity and seriousness of the offence(s) alleged against the respondent, his chances of jumping over the bail, obstructing trial and intimidating the prosecution witnesses in the event of his bail. These aspects were given scant attention and not discussed at all. We do not come across even a whisper in the order dated 30.8.2011 whereby the bail was granted to the respondent, as regards the spillover of the alleged offences on the society or the fallout of allegations that the respondent was a habitual offender and a case FIR No. 88/2006 was registered against him, a criminal case was pending against him and that he had not bothered to appear in the said case and a non-bailable warrant was issued against him. Learned Sessions Judge also failed to realize that in the face of Birth Certificate issued by the J&K Board of School Education, the alleged victim, a class 11 student who admittedly had passed matriculation examination and her date of birth was registered with the Board, was 15 years plus of age on the date of alleged occurrence and that the ossification test would not ordinarily be allowed to belie the date of birth so recorded more so when the ossification test was admittedly conducted on 9.8.2011 i.e. one year and three months after the alleged occurrence. Learned Sessions Judge failed to appreciate that the outcome of the ossification test did not in any manner dilute the seriousness and gravity of the offence as it did not ipso facto belie the occurrence more so in the face of Date of Birth certificate and the interval between date of occurrence and the date it was conducted, and in the said background was not to be given the pivotal importance or treated as a determining factor as has been done by the court. Learned Sessions Judge appears to have lost sight of the fact that in the matters of Date of Birth, one recorded in the Municipal/School records deserves preference as against the age determined on the basis of ossification test. To illustrate, Rule 21 (5) of J&K Juvenile Justice Rules, 2007, while cataloguing the documentary evidence, puts the birth certificate issued by a Municipality or Corporation, or by the school first attended, on a superior pedestal as against the age determined on the basis of medical opinion of a duly constituted Medical Board. The competent authority in terms of the Rules while determining the age of an accused brought before it so as to decide whether the benefit under Justice Juvenile Act is or is not to be made available to the accused, has to give a look to the opinion of the Medical Board only in case the birth certificate issued by the Municipality or by the school first attended by the accused is not available. Conversely, if birth certificate issued by the Municipality or the school first attended is available, the opinion given by the Medical Board is not to be considered at all. The logic for such a legal proposition is not difficult to infer. The Date of Birth recorded in the Municipal or School records is anterior in point of time and is not tainted with any mala fides or concoction. The person who records the Date of Birth of his child on his birth or on his attaining the school-going age, cannot be said to have anticipated that his/her child would be victim of a criminal assault and thus taken to have cooked up the Date of Birth more than a decade before the incident takes place. Again, the ossification test, it ought to have been realized, is not the most reliable source to assess the exact age of a person and as per Modis Medical Jurisprudence, the ossification test is always subject to variation of 2 to 3 years on either side, and therefore, on the basis of such test no definite opinion could be formed.

10. To sum up the learned Sessions Judge has passed the impugned order unmindful of the settled legal principles, in a mechanical manner avoiding to discuss the aspects of the matter that in such a case must weigh with the trial court. The impugned order in the circumstances cannot stand legal scrutiny and amounts to abuse of process of the court.

11. It sounds surprising that a prayer for ossification test of the alleged victim has come from the Special Public Prosecutor. The Investigating Officer was able to lay hands on Birth certificate (Matriculation) of the victim issued by J&K Board of School Education whereupon the victim was shown to have been a little less than 16 years of age at the time of the alleged occurrence. The investigating officer had accordingly concluded that the respondent prima facie appeared to have committed offence punishable u/s 363 RPC. There was, therefore, no occasion for the Special Public Prosecution to create confusion about his own case and prevent the trial to be taken to the take off stage, because of the confusion so created. A request, if at all, for the determination of the age of the victim by subjecting her to ossification test notwithstanding birth certificate issued by the Board, might have come from the defence at an appropriate stage and not, in least, from Special Public Prosecutor. However, it would not be appropriate to comment any further on this aspect of the case as any further discussion may touch upon merits of the case and prejudice the stand taken by the parties before the trial court.

12. For the reasons discussed, the petition is allowed. The trial court order dated 30.8.2011 whereby bail has been granted to the respondent is quashed in exercise of inherent powers u/s 561A Cr. P. C. The accused shall surrender before the Sessions Court, Anantnag by 14.5.2012 and on his surrender remanded to judicial custody. In the event the respondent fails to surrender by 14.5.2012, the Trail court shall secure his presence by issuing non-bailable warrant addressed to SSP Anantnag, who shall execute the warrant without fail and produce the respondent before the Trial Court.

13. It is shocking that the trial against the respondent is yet to commence, presumably because of the delay occasioned by the application filed by the Special Public Prosecutor. Now that there is no reason to delay the matter the Trial court shall take up the matter in the week commencing 14th May and on such date pass order in terms of Chapter XXIII Criminal Procedure Code and thereafter list the matter at least once in two weeks and fix session stretching over 2 to 3 days for recording prosecution witnesses. The Trial Court shall make every effort and exercise all powers available under the code to ensure that the Trial is concluded by or before 31st August 2012. The copy of the order be transmitted to Principal District Judge, Anantnag, by the fastest mode of communication available.